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Barber's attorneys seek new trial

New lawyers say original legal team had $1 million conflict of interest

Justin Mertis Barber shakes hands with his new attorney William Mallory Kent before appearing in front of circuit Judge Patti Christensen at the St. Johns County Courthouse on Friday, May 4, 2012. Barber, who is seeking a new trial, was found guilty in 2006 of murdering his wife on the beach at Guana River State BY DARON DEAN, daron.dean@staugustine.com

Bob Willis, left, former attorney to Justin Barber, takes the witness stand in Barber's hearing for a retrial in front of circuit judge Patti Christensen, right, at the St. Johns County Courthouse on Friday, May 4, 2012. Barber was found guilty in 2006 of murdering his wife on the beach at Guana River State Park. BY DARON DEAN, daron.dean@staugustine.com

Justin Mertis Barber appears before circuit Judge Patti Christensen at the St. Johns County Courthouse on Friday, May 4, 2012. Barber, who is seeking a new trial, was found guilty in 2006 of murdering his wife on the beach at Guana River State BY DARON DEAN, daron.dean@staugustine.com

Justin Mertis Barber 2006

Justin Mertis Barber

7/9/04 - St. Johns County sheriff's detectives Timothy Burres and Skip Cole takeJustin Mertis Barber, 32, to county jail after his arrest on Friday, July 9, 2004. Barber is charged in the homicide of his wife, April Barber on August 17, 2002. Photo By PETER WILLOTT/ST. AUGUSTINE RECORD

A man convicted of killing his wife on a beach in Ponte Vedra Beach and sentenced to life in prison without parole was in court Friday to ask for a new trial.

A jury in 2006 found Justin Mertis Barber, now 40, guilty of shooting and killing April Barber, then 27. Prosecutors had argued the motive was $2.4 million in insurance policies coupled with $58,000 he owed in stock losses.

On Friday, new attorneys asked Circuit Judge Patti Christensen for a new trial for, among other reasons, what they said was ineffectual counsel due to a conflict of interest on the part of Barber’s previous defense attorneys, Robert Willis and Lee Hutton of Jacksonville.

They said a possible financial gain may have clouded the attorneys’ judgement.

Willis and Hutton were handling the civil insurance case and stood to gain $1 million in fees if they were successful in winning both the criminal and civil case. Both sides agreed this was true. The civil case could not be won if Barber pleaded guilty or was found guilty in the criminal case, though the attorneys would still face a tough battle if Barber was acquitted.

“In my view ... the most important issue is the conflict of interest,” said defense attorney William Mallory Kent of Jacksonville who, along with attorney Lisa Steely, represented Barber during the evidentiary hearing at the St. Johns County Courthouse.

Kent is an appellate attorney based in Jacksonville who took over as Barber’s attorney after his conviction. He has filed two appeals for Barber in the years since, both of which were denied. In July, he filed for this hearing requesting a new trial.

Kent said he held Willis and Hutton “in highest esteem.”

“All of us make mistakes,” he said.

‘Huge miscarriage of justice’

Willis and Hutton defended their position even though Willis said he hoped Barber would get a new trial.

“This case was not about money,” Willis testified. “As naive as it may sound, we believed in this guy. I think there was a huge miscarriage of justice, I still do.”

“I would like to see him get a new trial,” he said.

Barber’s new lawyers argued, in part, that Barber wasn’t told about the possibility of plea agreements because his then-lawyers stood to lose the money from the civil case if he was pleaded guilty.

But Willis and Hutton said they never counted on the money in the first place, and didn’t shepherd Barber toward an agreement because they believed in his innocence, felt he had a strong case and that he, Barber, simply wasn’t interested.

“Everybody, everybody was convinced he was innocent,” Willis said. “He looked like he was devastated (when he came into the law office shortly after April’s death), he looked like he had been hit by a truck.”

They both said Barber was adamant about his innocence and never considered a plea deal other than at a low point well into the lengthy process, when Barber was spent by the whole process and said he might be willing to consider a plea in exchange for a one, two- or three-year prison term.

Willis said he told his client that wasn’t even the beginning of a conversation and that 10 to 15 years might start a conversation with the state attorney’s office.

And that was the end of that, he said.

“He dismissed it out of hand,” Willis said.

No interest in deal

Throughout the case, Willis said, ”Justin Barber never, ever, ever expressed an interest in a plea agreement,” he said emphatically. “This was not a case that was going to settle. It was either a cold-blooded first-degree murder of a beautiful young woman who was by all accounts was very nice ... or he was innocent.

“There were no offers from the state,” Willis said.

Assistant State Attorney Chris France, agreed, saying there were no offers on the table.

Kent and Steely called for expert testimony from University of Florida law professor and ethics expert Amy Mashburn.

“My opinion is that they were operating under an actual conflict of interest,” she said. “They could have represented him in one case or the other, but not both.”

She said she believed some “opportunities were bypassed,” such as the possibility of a plea agreement.

And she said she had some questions about a deposition he consented to as part of the civil case despite the fact that it could be used against him in criminal case.

That deposition, Willis said, was a train wreck, with Barber answering many questions with “I don’t recall.”

He said he had to verbally shake Barber after that, and threaten to withdraw representation, because the evasive answers made him look guilty.

‘We believe’ in him

Barber took the stand as the defense’s last witness.

Pale, thin and aged since his sentencing, he told the court he would have considered a plea deal if he thought there was a significant chance he could be convicted at trial.

Especially since he had talked to other inmates who he said had a much lesser sentence than his current one after their plea deals.

“I had a bad habit of following my lawyers’ advice and (Willis) was very sure we would get a not guilty verdict,” he said.

Relatives of April and Justin Barber attended the hearing, sitting on opposite sides of the room.

Relatives of both sides declined to comment, other than three women who identified themselves simply as relatives of Justin Barber.

“We believe in his innocence and we always have,” one said. The others nodded in agreement.

July 15 is the next scheduled date on the matter. It likely will take months to learn if Christensen will grant Barber a new trial.